Inside Namibia’s refusal to pen EU pact

A clash of perspectives between Namibia and the European Union (EU) on issues such as burning the country’s ivory stockpiles meant the two parties were a country mile apart on a proposed new partnership agreement, which Namibia elected not to sign ahead of the 15 November deadline.

International relations minister Netumbo Nandi-Ndaitwah this week announced that Namibia would not sign the agreement alongside other members of the Africa, Caribbean and Pacific States (OACPS).

Namibia declined to sign after a legal opinion sought from Attorney-General Festus Mbandeka raised a litany of concerns, including several clauses that contradict the Namibian Constitution.

The Namibian government in 2021 already brought to the attention of the EU problems it had around the legalities of the partnership, and its fears that it contradicts the constitution.

“The new partnership agreement does not include a provision, clause [or] article for reservations. In February 2022, the government notified the EU that the Namibian government would not sign the draft agreement in its current form should the identified concerns not be addressed,” Nandi-Ndaitwah explained.

According to the legal opinion, Namibia, as a member of the OACPS, is not bound to sign the deal.

Treaty not clearly defined

Listing other reasons behind Namibia’s refusal to sign, the deal referred to over 80 treaties Namibia may not be a party to.

“The treaty does not have a glossary of terms or a definitions section, to ensure that all parties have the same understanding of terms, which may pose a problem in the implementation and evaluation phase,” Nandi-Ndaitwah said.

“The agreement refers to over 80 regional and international treaties, strategies, initiatives and programmes that may not be legally-binding agreements or processes, and our country may not necessarily be a party to,” she added.

“Having these provisions in the legally-binding new partnership agreement may elevate non-binding agreements, strategies, initiatives, programmes and processes to a legally-binding position or a treaty status.”

Ivory stockpiles

Namibia also took issue with a provision that it destroy its ivory stockpiles, the minister explained.

Namibia has in the past demanded that it be able to sell its ivory, saying it places wild animals such as rhinos and elephants at greater risk of being poached. Namibia, as at 2019, had ivory stockpiles valued at an estimated N$125 million.

“In Article 49 of the African Protocol, the draft new partnership agreement calls for the destruction of [ivory] stockpiles in the context of combatting wildlife trafficking under the Convention on International Trade in Endangered Species of Wild Fauna and Flora [Cites], a position that contradicts Namibia’s national position as well as the Southern African Development Community’s (SADC) common position on the matter,” she said.

No room for negotiation

Another torn in Namibia's side regarding the pact was the removal of provisions after negotiations had closed.

“The EU Party unilaterally removed the provisions for declarations in Article 6 of the new partnership agreement, even after negotiations were closed. It is normal practice when concluding international treaties that provision for declarations would be made in the text, so that a state may make a declaration about its understanding of a matter contained in or the interpretation of a particular provision in a treaty,” she said.

“The purpose of interpretative declarations of this kind would be to clarify the meaning of certain provisions of, or the entire treaty,” she added.

Namibia has feared signing the agreement would open its markets to European goods, which could negatively affect local industries and hinder development.